On appeal from the Supreme Court.
For the appellant, Feder & Rinzler.
For the respondent, McCarter & English (Herbert R. Baer and Augustus C. Studer, Jr., of counsel).
The opinion of the court was delivered by
TRENCHARD, J. The plaintiff below appeals from a judgment entered in favor of the defendant in the Supreme Court at the Passaic Circuit on defendant's motion before trial in an action by the plaintiff, who is the daughter of Charles Friedman, deceased, against the administrator of her father's estate after her father's death.
The motion was made pursuant to rule 26, Practice act 1912 (now rule 40), on the pleadings (to which was added a stipulation) upon the ground that no cause of action was disclosed against the defendant.
Briefly stated, the complaint charged that plaintiff was riding as an invitee with her father in his automobile in the State of New York; that by reason of her father's negligent driving an accident occurred which resulted in her injury and her father's death, and plaintiff claimed damages from her father's estate on account of her injuries. The answer of the defendant was a general denial. The stipulation entered into by the plaintiff and defendant was that "under the law of the State of New York in an action ex delicto as is involved in this suit, the common law applies, to the effect that the cause of action will not survive the death of either party, and in the State of New York, where the accident occurred, this plaintiff would have no cause of action against the defendant herein, the administrator of the deceased tort feasor."
As we see it, the question now before this court is whether the court erred in entering judgment for the defendant on the pleadings and stipulation before it. That, of course, turns upon the question whether the plaintiff has a cause of action against the defendant administrator for a tort which was committed by defendant's intestate in the State of New York, as a result of which the tort feasor himself died.
We believe no such cause of action was disclosed.
It is clear that by the rules of the common law no such suit could be maintained. Ten Eyck v. Runk, 31 N.J.L. 428.
It is true that in New Jersey we have a remedial statute permitting the survivorship of tort actions against the executor
or administrator of the tort feasor. Comp. Stat., p. 2260, § 5; Tichenor v. Hayes, Admrx., 41 N.J.L. 193; Hackensack Trust Co. v. Vanden Berg, 88 Id. 518. However, as we have seen, it was stipulated that under the law of the State of New York, where this accident occurred, there is no such statute; that under the law of that state the common law rule ...